Tennis Lilly's Urban Ecology blog.

Sunday, June 4, 2017

As promised, here is the text of the proposed wetland regulations that the Lawrence Conservation Commission will be voting on at our next meeting.
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WETLANDS PROTECTION REGULATIONS

Introduction:

Pursuant to the provisions of the
Lawrence Wetland Ordinance, Sec. 18.01 of the Lawrence Municipal Code (“The
Ordinance”), the Lawrence Conservation Commission (“ The Commission “) is
promulgating regulations to codify and update the provisions of The Ordinance
as authorized by the amendments approved by the Lawrence City Council on July
2, 2013. The purpose, scope, jurisdiction, definitions, performance standards,
procedures and fees specified in the ordinance are incorporated herein and
updated as follows:

1.Purpose

The purpose of these regulations is to protect the wetlands, water
resources, and adjoining land areas in the City of Lawrence
by controlling activities deemed by the Lawrence
Conservation Commission (hereinafter "Commission") likely to have a
significant or cumulative effect upon resource area values, including but not
limited to the following:public or
private water supply, groundwater, flood control, erosion and sedimentation
control, storm damage prevention, water quality, water pollution control,
fisheries, wildlife habitat, rare species habitat including rare plant species,
agriculture, recreation values deemed important to the community, and
riverfront area values.

These regulations may be amended by majority vote of the Commission
after publication of proposed changes and a public hearing.

2. Jurisdiction

Except as permitted by the Commission or as provided by this ordinance,
no person shall commence to remove fill, fill,
dredge, build upon, degrade, discharge into, or otherwise alter the following
resource areas:any freshwater wetlands;
marshes; wet meadows; bogs; swamps; lakes; ponds; rivers; streams; creeks;
banks; beaches; large isolated wetlands; lands within 100 feet of any of the
aforesaid resource areas; lands under water bodies; lands subject to flooding
or inundation by groundwater or surface waters; land within 750 feet of vernal
pools; land within 200 feet of any river or stream, (collectively, the
"resource areas protected by this ordinance").Said resource areas shall be protected
whether or not they border surface waters.

2.1 Exceptions

The permit and application required by the Ordinance shall not be
required for maintaining, repairing or replacing, but not substantially
changing or enlarging, an existing and lawfully located structure or facility
used in the service of the public to provide electric, gas, water, telephone,
telegraph or other telecommunication services, provided that the structure or
facility is not substantially changed or enlarged, provided that written notice
has been given to the Commission prior to commencement of work, and
provided that the work conforms to performance standards and design
specifications in regulations adopted by the Commission.

Permission of the Commission shall not be required for emergency
activity necessary for the protection of public health and/or safety. Under an
emergency situation, the Commission shall be notified within 24 hours of such
activity taking place or, if such notice is not practicable, as soon as
possible. Failure to notify the commission within a reasonable amount of time
may be considered a violation of these regulations and subject to enforcement
action.

2.2 Definitions

The defenitions stated in the Lawrence Wetland Ordinance are
incorporated herein by reference. Specifically, the following definitions shall
apply in the interpretation and implementation of the Ordinance:

The term "alter" shall include, without limitation,
the following activities when undertaken to, upon, within or affecting resource
areas protected by this ordinance:

(a)Removal, excavation or
dredging of soil, sand, gravel or aggregate materials of any kind;

(d)Dumping, discharging or
filling with any material which may degrade water quality;

(e)Placing of fill or
removal of material, which would alter elevation;

(f)Driving of piles,
erection or repair of buildings, or structures of any kind;

(g)Placing of obstructions
or objects (including docks and piers) in water;

(h)Destruction of plant
life including the cutting of trees;

(i)Changing water
temperature, biochemical oxygen demand, or other physical, biological or
chemical characteristics of water;

(j)Any activities,
changes, or work that may cause or tend to contribute to pollution of any body
of water or groundwater;

(k)Incremental activities
that have, or may have a cumulative adverse impact on the resource areasprotected by this ordinance;

(l)Application of
pesticides or herbicides.

(m)Removing, altering or
failing to maintain any structure that provides habitat for migratory or
endangered

species.

Banks are the land area which normally abuts and
confines a water body; lower boundary being the mean annual low flow level, and
the upper boundary being the first observable break in the slope or the mean
annual flood level, whichever is higher.

Beach means a natural or man-made unvegetated
bank which normally abuts and confines a water body. It may also include sand
bodies exposed within the channel above mean low water.

Bogs are areas where standing or slowly running
water is near or at the surface during a normal growing season and where a
vegetational community has a significant portion of the ground or water surface
covered with Sphagnum moss (Sphagnum) and where the vegetational community is
made up of a significant portion of one or more of, but not limited to nor
necessarily including all, of the following plants or groups of plants; aster
(Aster nemoralis), azaleas (Rhododendron canadense and R. viscosum), black
spruce (Picea mariana), bog cotton (Eriophorum), cranberry (Vaccinium
macrocarpon), high-bush blueberry (Vaccinium corymbosum), larch (Larix
laricina), laurels (Kalmia angustifolia and K. polifolia), leatherleaf
(Chamaedaphne calyculata), orchids (Arethusa, Calopogon, Pogonia), pitcher
plants (Sarracenia purpurea), sedges (Cyperaceae), sundews (Droseraceae), sweet
gale (Myrica gale), white cedar (Chamaecyparis thyoides).

Bordering Vegetated Wetlands are freshwater
wetlands that border on creeks, streams, rivers, ponds and lakes.Bordering Vegetated Wetlands are areas where
the soils are saturated, near saturation and/or inundated such that they
support a predominance (50% or greater) of wetland indicator plants.

Bordering Land Subject to Flooding is an area
with low, flat topography adjacent to and inundated by floodwaters rising from
creeks, streams, rivers, ponds or lakes.The boundary of Bordering Land Subject to Flooding is the 500-year flood
plain. It extends from the outer edge of
a bank or Bordering Vegetated Wetland.

Buffer
Zone means that area of land extending one hundred (100)
feet horizontally outward from the boundary of the following resource areas:
Freshwater Wetlands, Marshes, Wet Meadows, Bogs, Swamps, Lakes, Ponds, Rivers,
Streams, Creeks, Banks, Beaches, large isolated wetlands, lands under water
bodies, lands subject to flooding or inundation by groundwater or surface water
as specified in 310 CMR 10.02 (1), or 750 feet of any Vernal Pool.

Creek means the same as a stream.

Dredge means to deepen, widen, or excavate, either
temporarily or permanently.

Freshwater Wetlands are Wet Meadows, Marshes, Swamps and
Bogs.

Historic Mill Complex As defined in 310
CMR 10.04; An historic mill complex means the mill complexes in but not limited
to Holyoke, Taunton, Fitchburg, Haverhill, Methuen, and Medford in existence
prior to 1946 and situated landward of the waterside façade of a retaining
wall, building, sluiceway or other structure existing on August 7, 1996. An
historic mill complex also means any historic mill listed in the Massachusetts
Registry of Historic Places. An historic mill complex includes only the foot
print of the area that is or was occupied by interrelated buildings
(manufacturing buildings, housing, utilities, parking areas and driveways)
constructed before and existing after1946, used for any type of manufacturing
and mechanical processing, and including associated structures to provide water
for processing, to generate water power, or for water transportation.

Isolated Land Subject to Flooding is any
isolated depression without an inlet or outlet which at least once a year
confines standing water to a volume of at least one quarter acre-foot of water
with an average depth of at least six inches.The boundary is the perimeter of the largest observed or recorded volume
of water confined in the basin.

Lake means any open body of fresh water with a
surface area of ten (10) acres or more, and shall include great ponds.

Isolated Wetlands means isolated wetlands non-contiguous
with a river or pond, 1,000 square feet or larger.

Mean Annual High-Water Line shall be as
defined in Wetlands Protection Act Regulations 310 CMR 10.58(2), as they may be amended.

No Build
Buffer Zone Beginning at the outer limit of the No Disturbance Zone and
extending outward a minimum of 25 feet measured horizontally.

No Disturbance Buffer Zone
Beginning at the wetland resource area boundary and extending outward a minimum
of 25 feet measured horizontally from the border of the resource area.

Person The term "person" shall
include any individual, group of individuals, association, partnership,
corporation, company, business organization, trust, estate, the Commonwealth or
political subdivision thereof to the extent subject to Cityordinance, administration agency, public or
quasi-public corporation or body, this municipality, and any other legal
entity, its legal representatives, agents, or assigns.

Ponds shall include any substantially open body
of fresh water with a surface area observed or recorded within ten years prior
to the date of application as defined in 310 CMR 10.04 except that the size
threshold of 10,000 square feet shall not apply. Ponds may be either naturally
occurring or man-made by impoundment, excavation, or otherwise.Ponds shall contain standing water except for
periods of extended drought.For
purposes of this definition, extended drought shall mean any period of four or
more months during which the average rainfall for each month is 50% or less of
the ten year average for that same month.

Notwithstanding the above, the following man-made bodies of open water
shall not be considered ponds:swimming
pools or other impervious man-made basins; and individual gravel pits or
quarries excavated from upland areas unless inactive for five or more consecutive
years.

Rare species The term "rare species"
shall include, without limitation, all vertebrate and invertebrate animal and
plant species listed as endangered, threatened, or of special concern by the
Massachusetts Division of Fisheries and Wildlife, regardless of whether the
site in which they occur has been previously identified by the Division.

Resource areas The term "resource
areas" shall include any freshwater wetlands; marshes; wet meadows;
bogs; swamps; lakes; ponds; rivers; streams; creeks; banks; beaches; vernal
pools; large isolated wetlands; land under water in each resource area;
riverfront area; land subject to flooding or inundation by groundwater or
surface waters; and Buffer Zone as defined in this ordinance.

Resource Area Values shall include but
are not limited to the following; public or private water supply, ground water,
flood control, erosion and sedimentation control, storm damage prevention,
water quality, water pollution control, fisheries, wildlife habitat, rare
species habitat including rare plant species, agriculture, riverfront area
values, and recreation values deemed important to the community.

River means a natural flowing body of water of
any size that empties to any ocean, lake or other river and which flows throughout
the year.

Riverfront Area is defined in Wetlands Protection Act
Regulations 310 CMR 10.58(2) (a)(3): is
the area of land between a river’s mean annual high-water line measured
horizontally outward from the river and a parallel line located 200 feet away
or as modified for Lawrence. (See Riverfront Area and Table 1) In areas where
there riverbank has been altered or constricted by the presence of manmade
structures or improvements, ie the GLSD sewer interceptor, or placement of rip
rap or other armoring of the riverbank, the riverfront area shall be measured
from top of bank, not mean high-water.

Stream is a body of running water, and the land
under the water, including brooks, creeks, and man-made water courses, which
moves in a definite channel in the ground due to hydraulic gradient.A portion of a stream may flow through a
culvert, or beneath a bridge or beneath the surface of the ground.A stream may be intermittent (i.e. does not
flow throughout the year) except for that portion up gradient of all resource
areas.

Swamps are areas where ground water is at or near
the surface of the ground for a significant part of the growing season or where
runoff water from surface drainage frequently collects above the soil surface,
and where a significant part of the vegetational community is made up of, but
not limited to nor necessarily include all of the following plants or groups of
plants:alders (Alnus), ashes
(Fraxinus), azaleas (Rhododendron canadense and R. viscosum), black alder (Ilex
verticillata), black spruce (Picea mariana), buttonbush (Cephalanthus
occidentalis), American or white elm (Ulmus americana), white Hellebore
(Veratrum viride), hemlock (Tsuga canadensis), highbush blueberry (Vaccinium
corymbosum), larch (Larix laricina), cowslip (Caltha palustris), poison sumac
(Toxicodendron vernix), red maple (Acer rubrum), skunk cabbage (Symplocarpus
foetidus), sphagnum mosses (Sphagnum), spice bush (Lindera benzoin), black gum
tupelo (Nyssa sylvatica), sweet pepper bush (Clethra alnifolia), white cedar
(Chamaecyparis thyoides), willow (Salicaceae), common reed (Phragmites
communis), jewelweed (Impatiens capensis).

Vernal Pool shall include a confined basin
depression of any size which, at least in most years, holds water for a minimum
of two continuous months during March through August, which is free of
naturally occurring fish populations and which contains evidence of breeding by
obligate vernal pool species as recognized by Massachusetts Natural Heritage
and Endangered Species Program. A Vernal
Pool shall be subject to these regulations without regard to its certification
status with NHESP.

Wetland Resource Area is any resource
area other than the Buffer Zone.

Wet Meadows are areas where ground water is at
the surface for the significant part of the growing season and near the surface
throughout the year and where a significant part of the vegetational community
is composed of various grasses, sedges, and rushes, made up of, but not limited
to nor necessarily including all of the following plants or groups of
plants:blue flag (Iris), vervain
(Verbena), thoroughwort (Eupatorium), dock (Rumex), false loosestrife
(Ludwigia), hydrophilic grasses (Gramineae), loosestrife (Lythrum), marsh fern
(Dryopteris thelypteris), rushes (Juncaceae), sedges (Cyperaceae), sensitive
fern (Onoclea sensibilis), smartweed (Polygonum).

Wildlife Habitat is any structure or feature, whether
naturally ocurring or human made, or vegetative feature, or landscape features that
provides for nesting, breeding, or feeding of animal species.

Except as otherwise provided in the ordinance or in regulations of the
Commission, the definitions of terms in this ordinance shall be as set forth in
the Wetlands Protection Act MGL Chapter 131, Section 40 and Regulations, 310
CMR 10.00, as they may be amended.

3.0Conditions

Lands within 200 feet of
the bank of rivers, 750 feet of vernal pools (regardless of their certification
status), and lands within 100 feet of ponds or lakes other wetland resource
areas are presumed under the ordinance and these regulations important to the
protection of these resources because activities undertaken in close proximity
to resource areas have a high likelihood of adverse impact upon the wetland or
other resource, either immediately, as a consequence of construction, or over
time, as aconsequence of daily operation
or existence of the activities. No
activity that may alter the resource area shall take place within these areas
without the issuance of an Order Of Conditions or a Negative Determination of
Applicability from the Commission.

For all proposed work, the
Commission shall regard as practicable an alternative which is reasonably
available and capable of being done, after taking into consideration the
proposed property use, overall project purpose (e.g. residential, institutional,
commercial, or industrial purpose), logistics, existing technology, costs of
the alternatives and overall project costs.

All
activities shall:

1.Avoid resource areas and their buffer zones.
Where that is not possible or practicable;

2.Minimize resource area alteration. There resource
area alteration is unavoidable;

3.The Commission shall require full mitigation. The
Commission may authorize replication or other forms of mitigation. In the event
of replication, the Commission shall require adequate security to ensure the
completion of replication and impose other requirements as the Commission deems
necessary.

To
ensure that stormwater management structures
are sufficient to meet likely future demands caused by climate change, the
commission shall require the most current rainfall data available be used in
all storm water calculations. The Cornell University Rainfall Atlas for New
York and New England and NOAA Atlas 14 are currently the only approved rainfall
data sources for use in submissions to the Commission.

3.1Bordering
Vegetated Wetlands and Isolated Wetlands

Bordering
Vegetated Wetlands and Isolated Wetlands (310 CMR 10.55) and other
resource areas shall receive the protection of a Buffer Zone which shall extend
100 feet horizontally beyond the wetland line. The Buffer Zone will include a
setback from the wetlands line of a 25 foot vegetative No Disturbance Buffer
Zone and an additional 25 foot No Build Buffer Zone. Restoration activities
will be allowed in the No Disturbance Zone.

A property with a
No Disturbance Buffer Zone will have the No Disturbance Buffer Zone attach to
the deed upon issuance of an order of conditions for the property. This will be
the responsibility of the applicant for the Notice of Intent and the final
order shall not be approved until suitable proof of compliance is submitted to
the Commission.

3.2Land
Subject to Flooding

Land Subject
to Flooding 310 CMR 10.57) Compensatory
storage shall be provided, in situ, on a 1:1 basis for any loss of flood storage within the
500 year flood zone. Lands within the 500 year flood plain may be
subject to the Bordering vegetated wetlands, Isolated wetlands and or the
Riverfront requirements

3.3Intermittent
Streams

Intermittent
Streams: Determinations of the intermittent character of a stream made
betweenJune andSeptember and in years of less than average
rainfall shall be subject to review by this board and must meet the criteria of
an average year and an average monthly rainfall as determined by NOAA or the
DEP. Because a Stream Channel represents the interception of the channel bottom
with the water table, both intermittent and perennial streams with enough
contact with the ground water table to sustain aquatic, wetland or wetland
facultative vegetation within the historic banks shall receive the protection
of the by-law during periods of below average rainfall as determined by the Department
of Environmental Protection.

3.4 Riverfront Areas

Activities within 200 feet of any river or stream are
subject to regulation.

Man made canals do not have riverfront areas.

The Ordinance created 4 categories of Riverfront areas, 200 foot, 100
foot, 50 foot and 25 foot – each with specific performance standards. The table
delineating the riverfront area and the performance standards for each in
included herein by reference and can be found in the Appendix to these
regulations

3.5Historic
Mill Complexes

In Historic Mill Complexes where functioning retaining
walls, building penstocks and raceways buildings or other structures existed on
or before August 7, 1996 (unless specified in Table 1), the 25-foot Riverfront area
shall be applied.

3.7Wildlife
Habitat

The
Commission may require a wildlife habitat study by a consultant, chosen or
approved by the Commission, of the project area to be paid for by the applicant
whenever it deems appropriate, regardless of the type ofresourcearea or the amount of type of alteration proposed.

3.8Vernal Pools

The
commission shall presume that all areas meeting the definition of vernal pools
under section 18.08.010 of the ordinance, including the adjacent area, perform
essential habitat functions. No disturbance shall be allowed within 100 feet of
the delineated border of a vernal pool. Any activity within 750 feet of the
edge of a vernal pool shall be subject to conditions determined necessary by
the Commission to protect the habitat functions of the vernal pool.

4.0 Administrative Fees

Each application filed with the Lawrence Conservation
Commission pursuant to The City of Lawrence Wetland Protection Ordinance shall
be accompanied by a filing fee as specified by the Ordinance (unless modified
by this regulation).

Applicants shall be required to pay a $100 advertising
fee upon submission in addition to the fees specified in the Schedule of Fees.

The schedule of fees in located in APPENDIX B.

4.1 Application
and Public Hearing

For consistency and regulatory efficiency, the
application process for filing a Notice of Intent, Request for Determination of
Applicability or Abbreviated Notice of Resources Area Delineation under the
Ordinance and these regulations shall be as set forth in the Wetlands
Protection Act MGL Chapter 131, Section 40 and Regulations, 310 CMR 10.00, as
they may be amended.

About Me

Tennis Lilly is a senior fellow with the Environmental Leadership Program and is chairperson of the Lawrence Conservation Commission. He is the Program Manager for the Green Streets program at Groundwork Lawrence, an environmental non-profit in Lawrence, MA. He holds a B.A. in Environmental Studies and an M.Ed., both from Lesley University. Tennis lives in Lawrence with his wife of 29 years, Michelle.